Can a Soldier Refuse a Lawful Order? Navigating Legal and Ethical Boundaries

In the aftermath of World War II, the legal consensus was established that soldiers who carried out war crimes and crimes against humanity bear legal guilt for their actions, even if they were only following orders. This raises important questions about the balance between military duty, legal obligations, and personal morality.

Understanding Legal Orders and Insubordination

It is crucial to differentiate between lawful orders and illegal or unethical directives. While refusing a lawful order may be insubordination, and thus punishable, refusing an illegal order is a different matter. An order that is unlawful or violates established laws, regulations, or the Uniform Code of Military Justice (UCMJ) is not binding, and soldiers have the right to refuse such orders.

Categories of Offenses under the UCMJ

Article 92 of the UCMJ defines disobeying a direct order as a federal article offense, encompassing:

Violations or failures to obey lawful general orders or regulations Failures to obey other lawful orders Dereliction of duty

So long as an order is lawful and issued by an authorized person, soldiers are expected to follow it, regardless of the circumstances or their personal moral standpoint. However, if an order is proven to be illegal, it can be refused, and the defense of unlawfulness can be robust.

The Consequences of Refusal

Refusing a lawful order is considered insubordination. Service members who willfully disobey a lawful command can be charged with insubordination and face severe penalties, including:

A dishonorable discharge Forfeiture of pay and allowances Confiscation of property No more than 2 years of confinement

A dishonorable discharge can have numerous long-term repercussions. Dishonorably discharged veterans may lose many civil rights, such as the ability to:

Vote Serve on a jury

Additionally, these veterans are barred from working for the federal government, among other limitations.

Conclusion

While personal morality is a critical consideration, it cannot override the legal duty of a soldier to obey lawful orders. If an order is proven to be illegal, soldiers have the right and duty to refuse it. However, the consequences of such actions, including legal penalties and long-term personal and professional repercussions, must be carefully considered and understood.